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No. 18-1723
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Kimberly Watso, individually and on behalf of C.H. and C.P., her minor children, and Kaleen Dietrich,
Appellants,
v. Emily Piper in her official capacity as Commissioner of the Department of Human
Services; Scott County; Tribal Court of the Shakopee Mdewakanton Sioux (Dakota) Community; and its Judge John E. Jacobson, in his official capacity; Tribal Court of the Red Lake Band of Chippewa Indians; and its Judge Mary
Ringhand, in her official capacity, Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
RED LAKE PARTIES APPELLEES’ BRIEF
Joseph M. Plumer (#164859) Riley F. Plumer (#0399379) PLUMER LAW OFFICE 9352 N. Grace Lake Rd. SE Bemidji, MN 56601 Telephone: (218) 556-3824 Email: [email protected] Attorneys for Appellees Tribal Court of the Red Lake Band of Chippewa Indians
and Judge Mary Ringhand, in her official capacity
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SUMMARY OF THE CASE
This is the second lawsuit that Plaintiffs-Appellants Kimberly Watso and
Kaleen Dietrich have brought against Defendants-Appellees the Tribal Court of the
Red Lake Band of Chippewa Indians, Judge Mary Ringhand, in her official
capacity (collectively the “Red Lake Parties”), Emily Piper, in her official capacity
as Commissioner of the Department of Human Services, Scott County, the Tribal
Court of the Shakopee Mdewakanton Sioux (Dakota) Community, and Judge John
Jacobson, in his official capacity.
Appellants seek to have the Court ignore the well-established doctrine of
tribal sovereign immunity and proceed to undermine the Indian Child Welfare Act
(“ICWA”) and Public Law 280—all in an attempt to force the transfer of child
custody proceedings from tribal court to state court so that one of the Appellants
may relitigate her parental rights.
The District Court below properly adopted Magistrate Judge Katherine M.
Menendez’s Report and Recommendation dated December 5, 2017 (“R&R”),
overruled Appellants Watso and Dietrich’s objections to the R&R, dismissed the
Appellants’ Complaint, denied Appellants’ Motion for Partial Summary Judgment,
and granted Appellees’ Motion to Dismiss. Appellees respectfully request this
Court to affirm the District Court’s decision below.
Appellees collectively request 30 minutes for oral argument.
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CORPORATE DISCLOSURE STATEMENT
Defendants-Appellees the Tribal Court of the Red Lake Band of Chippewa
Indians and Judge Mary Ringhand are not corporations. The Tribal Court of the
Red Lake Band of Chippewa Indians and Judge Mary Ringhand do not have a
current interest in any corporation nor are otherwise affiliated with any corporate
entity regarding this appeal.
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TABLE OF CONTENTS SUMMARY OF THE CASE.…………………………………………………….... i CORPORATE DISCLOSURE STATEMENT.…………………………………… ii TABLE OF CONTENTS…………………………………………………………. iii TABLE OF AUTHORITIES.……………………………………………………… v JURISDICTIONAL STATEMENT.………………………………………………. 1 STATEMENT OF ISSUES.……………………………………………………….. 2
STATEMENT OF THE CASE.…………………………………………………… 3
A. Factual and Procedural Background.………………………………… 3
B. The District Court Litigation.………………………………………… 8
SUMMARY OF THE ARGUMENT…………………………………………….. 18
STANDARD OF REVIEW.……………………………………………………… 19 ARGUMENT.…………………………………………………………………….. 21 I. THE RED LAKE PARTIES ARE IMMUNE FROM SUIT……………… 21
A. The Red Lake Parties Enjoy Sovereign Immunity from Appellants’ Suit.…………………………………………………….. 21
B. The Ex Parte Young Doctrine Does Not Apply Because Red Lake Court Judge Mary Ringhand Has Not Violated Federal Law.……… 23
II. APPELLANTS CANNOT BRING A PETITION UNDER 25 U.S.C. § 1914 TO INVALIDATE TRIBAL COURT PROCEEDINGS.………………………………………………………….. 24 III. THE RED LAKE COURT PROPERLY EXERCISED JURISDICTION OVER THE CHILD CUSTODY PROCEEDING INVOLVING C.P...……………………………………… 26
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A. The Red Lake Band Has Jurisdiction Over the Child Custody Proceeding Involving C.P. Based on Its Inherent Sovereign Authority.…………………………………………………………… 26
B. The Red Lake Band’s Jurisdiction over Child Custody Cases Involving Members of the Red Lake Band Has Not Been Abrogated or Divested by Congress.……………………………….. 28 1. Public Law 280 as Incorporated in ICWA Does Not
Abrogate the Red Lake Band’s Inherent Sovereign Jurisdiction over Child Custody Proceedings Involving Members of the Red Lake Band.……………………………. 28
2. ICWA Does Not Require a State Court Action to Precede a Tribal Court Proceeding to Grant Watso a Right to Challenge Tribal Court Jurisdiction Over a Child Custody Proceeding Under the Circumstances of this Case.………………………………………………………….. 30
IV. APPELLANTS’ CLAIMS AGAINST THE RED LAKE PARTIES RELATED TO C.P. MUST BE DISMISSED AS MOOT OR BARRED BY THE DOCTRINE OF CLAIM PRECLUSION……………………………………………………31
A. Claims Against the Red Lake Parties Related to C.P. are Moot.…………………………………………………………….. 31
B. Claims Against the Red Lake Parties Related to C.P. are Barred by the Doctrine of Claim Preclusion.……………………. 33
CONCLUSION.………………………………………………………………….. 34 CERTIFICATE OF COMPLIANCE……………………………………………... 35 CERTIFICATE OF SERVICE…………………………………………………… 36
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TABLE OF AUTHORITIES
FEDERAL CASES Page Adoptive Couple v. Baby Girl, 233 S.Ct. 2552 (2013).…………………………………………………….. 25 Amerind Risk Mgmt. Corp. v. Malaterre, 633 F.3d 680 (8th Cir. 2011).………………………………………….. 21, 22 Ashcroft v. Iqbal, 556 U.S. 662 (2009).………………………………………………………. 20 Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466 (8th Cir. 1999).…………………………………………….... 23 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).………………………………………………………. 20 Cnty. of Boyd v U.S. Ecology, Inc., 48 F.3d 359 (8th Cir. 1995).……………………………………………….. 33 Coons v. Mineta, 410 F.3d 1036 (8th Cir. 2005).…………………………………………….. 19 Deakins v. Monaghan, 484 U.S. 193 (1988).………………………………………………………. 31 Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005).……………………………… 2, 13, 14, 17, 25 Ex parte Young, 209 U.S. 123 (1908).…………………………………………………... 21, 23 Fisher v. Dist. Ct. of Sixteenth Jud. Dist. of Mont., in and for Rosebud Cnty., 424 U.S. 382 (1989).………………………………………………………. 26 Fort Yates Pub. Sch. Dist. # 4 v. Murphy, 786 F.3d 662 (8th Cir. 2015).…………………………………………… 2, 22
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Haden v. Pelosky, 212 F.3d 466 (8th Cir. 2000).……………………………………………… 32 Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040 (8th Cir. 2000).…………………………………………….. 22 Hamm v. Groose, 15 F.3d 110 (8th Cir. 1994).…………………………………….................. 20 Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009).………………………………………………………. 21 Hester v. Redwood Cnty., 885 F.Supp.2d 934 (D. Minn. 2012).…………………………………... 19, 20 Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505 (8th Cir. 2012).……………………………………………… 33 Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751 (1998).………………………………………………………. 22 Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) ………………………………………………………. 32 Little Gem Life Sciences, LLC v. Orphan Med., Inc., 537 F.3d 913 (8th Cir. 2008).……………………………………………... 20 Minch Family LLP v. Buffalo-Red River Watershed Dist., 628 F.3d 960 (8th Cir. 2010).…………………………………………… 2, 33 Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989).……………………………………………………. 17, 27 N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458 (8th Cir. 1993).……………………………………….. 2, 23, 24 Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548 (9th Cir. 1991).……………………………….. 2, 14, 17, 26, 28
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Porous Media Corp. v. Pall Corp., 186 F.3d 1077 (8th Cir. 1999).…………………………………………….. 16 Potter v. Norwest Mortg., Inc., 329 F.3d 608 (8th Cir. 2003).……………………………………………… 32 Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993).………………………………………………………. 23 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).……………………………………………………....... 22 Turner v. Armontrout, 922 F.2d 492 (8th Cir. 1991).…………………………………………….... 19 United States v. Mazurie, 419 U.S. 544 (1975).………………………………………………………. 27 United States v. Quiver, 241 U.S. 602 (1916).………………………………………………………. 27 V S Ltd. P’Ship v. Dep’t of Hous. and Urban Dev., 235 F.3d 1109 (8th Cir. 2000).…………………………………………….. 19 Walker v. Rushing, 898 F.2d 672 (8th Cir. 1990).…………………………………………… 2, 11 Watso v. Jacobson, No. 16-cv-00983 (PJS/HB) (D. Minn. Feb. 10, 2017).…………………. 2, 33 FEDERAL STATUTES 25 U.S.C. §§ 1301-1304.…………………………………………………………... 7 25 U.S.C. § 1903.………………………………………………………………… 27 25 U.S.C. § 1911.……………………………………………………………. passim 25 U.S.C. § 1914.………………………………………………..................... passim
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25 U.S.C. § 1918 …………………………………………………….. 12, 13, 14, 17 28 U.S.C. § 1360…………………………………………………………….. passim 42 U.S.C. § 1983……………………………………………………………........... 9 FEDERAL RULES FED. R. CIV. P. 12……………………………………………………......... 16, 19, 20 FEDERAL REGULATIONS 25 C.F.R. § 23.103(b)(1)………………………………………………………. 2, 25
25 C.F.R. § 23.106(b)…………………………………………………………….. 17 25 C.F.R. § 23.1117………………………………………………………………. 31 83 Fed. Reg. 4235 (Jan. 30, 2018)…………………………………………………. 3 OTHER AUTHORITIES Cohen’s Handbook of Federal Indian Law § 6.04[3][c] (Nell Jessup Newton ed., 2012)……………………………………………. 29
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JURISDICTIONAL STATEMENT
Defendants-Appellees the Red Lake Parties agree with Appellants’
Jurisdictional Statement.
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STATEMENT OF ISSUES
I. Whether the Red Lake Parties are immune from Appellants’ claims.
Fort Yates Pub. Sch. Dist. # 4 v. Murphy, 786 F.3d 662 (8th Cir. 2015);
N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458 (8th Cir. 1993).
II. Whether 25 U.S.C. § 1914 provides a cause of action to invalidate tribal
court proceedings. Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005);
25 C.F.R. § 23.103(b)(1).
III. Whether the Red Lake Court properly exercised jurisdiction over the child custody proceeding involving C.P. Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005); Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548 (9th Cir. 1991);
Walker v. Rushing, 898 F.2d 672 (8th Cir. 1990).
IV. Whether any claims alleged against the Red Lake Parties related to C.P.
must be dismissed as moot or barred by the doctrine of claim preclusion.
In the Matter of [C.P.], Red Lake Family & Children’s Services v. Watso, Case No. CP-2016-0069 (Red Lake Nation Tribal Court) (Nov. 17, 2017), Order Granting Transfer of Custody of C.P. to Kaleen Dietrich, ECF No. 112;
Watso v. Jacobson, No. 16-cv-00983 (PJS/HB) (D. Minn. Feb. 10, 2017);
Minch Family LLP v. Buffalo-Red River Watershed Dist., 628 F.3d 960 (8th Cir. 2010).
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STATEMENT OF THE CASE
A. Factual and Procedural Background
Kimberly Watso is the mother of minor children C.P. and C.H. Complaint
(“Compl.”) ¶ 1, ECF No. 1; reprinted in Appellees’ Appendix (“Apps’ App.”) at 1-
48. Kaleen Dietrich is the maternal grandmother of the children. Id. ¶ 5. C.P. is a
member of the Red Lake Band of Chippewa Indians (“Red Lake Band”). Id. ¶ 2.
C.H. is a member of the Shakopee Mdewakanton Sioux (Dakota) Community
(“SMSC” or “Community”).1 Id. ¶ 3. Neither Watso nor Dietrich are enrolled in an
Indian tribe. Id. ¶¶ 1, 5.
Initiation of the Child Custody Proceeding in Tribal Court
On January 22, 2015, an SMSC Child Welfare Officer filed an emergency ex
parte petition under Chapter VIII of the Community’s Domestic Relations Code
(“Code”), requesting that the SMSC Tribal Court grant temporary legal and
physical custody of C.P. and C.H. to the Community’s Family and Children’s
Services Department (“Department”). Watso v. Jacobson (Watso I), No. 16-983,
ECF No. 1 ¶ 52 (D. Minn. May 31, 2016). The SMSC Tribal Court determined that
the matter should not be heard ex parte, and held a hearing with Watso present. Id.
at ¶ 54. During the hearing, the Department presented considerable evidence of
1 Both the Red Lake Band and the Community are federally recognized Indian tribes. 83 Fed. Reg. 4235, 4238 (Jan. 30, 2018).
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chemical use by Watso and C.H.’s father, Isaac Hall. SMSC Tribal Court Order,
ECF No. 17 at 2;2 Appellees’ Joint Appendix (“Joint App.”) at 604. Based on the
evidence, the SMSC Tribal Court opened a child welfare case, deemed the children
wards of the SMSC Tribal Court (“children in need of assistance”), and ordered
social services to be provided to the parents. ECF No. 17 at 5; Joint App. at 607;
SMSC Tribal Court Hearing Transcript, ECF No. 21 at 5; Joint App. at 607.
Approximately one month after the SMSC Tribal Court opened the child
welfare case for C.H. and C.P., on February 24, 2015, Watso and Hall brought
C.H. to a medical clinic for an examination of an injury to his head. Compl. ¶ 18.
The medical exam resulted in a report of possible child abuse or neglect by Watso
and Hall. Id. ¶¶ 15, 19. After receiving the report of possible child abuse, the
Shakopee Police Department (as to C.H.) and the Prior Lake Police Department (as
to C.P.) placed the children on a 72-hour health and safety hold. Id., Ex. 3, Apps’
App. at 117.
The Department filed a new ex parte motion in the preexisting child custody
proceeding to transfer legal and physical custody of both children from their
parents to the Community. Id., Ex. 4; Apps’ App. at 119. Watso was notified of the
motion and she objected to the SMSC Tribal Court’s exercise of jurisdiction.
Compl. ¶¶ 130-36. The SMSC Tribal Court overruled Watso’s objections, and
2 Citations to ECF pages are to the page number in the ECF heading.
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transferred temporary legal and physical custody of C.P. and C.H. to the
Department. Id., Ex. 4; Apps’ App. at 119.
Transfer of Children to their Current Placements
Shortly after the commencement of the child custody proceedings, it was
established that C.P. was a member of the Red Lake Band, and the Department
notified the Red Lake Band. ECF No. 17 at 6; Joint App. at 608. Thereafter,
representatives of the Red Lake Band were included on the SMSC Tribal Court’s
service list, participated in hearings, and supported the positions taken by the
Department, the Guardian ad Litem, and the orders entered by the SMSC Tribal
Court. Id.
Following a period of foster care, the Department and the Guardian ad Litem
recommended that C.P. be temporarily placed with Dietrich and that he receive
therapy to address behaviors driven by anxiety. Id. at 6. The SMSC Tribal Court
adopted those recommendations on April 21, 2015. Id. The SMSC Tribal Court
subsequently held status conferences to monitor the children and received reports
from the Department and Guardian ad Litem that both C.H. and C.P. were
progressing with the assistance of therapy and other social services. Id. 6-7.
Hall and Watso separated during this period. Later in 2015, Watso married
another Community member, Ed Watso. Id. at 7.
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As time progressed, the parents repeatedly failed to comply with the
provisions of the SMSC Tribal Court-ordered case plans for reunification with the
children. Id. Because reunification was not possible, the Department and the
Guardian ad Litem requested the SMSC Tribal Court to remove C.H. from foster
care and place him into the home of his paternal great aunt, who lives on the
Community’s Reservation. Id.; Compl. ¶ 36.
Watso’s Jurisdictional Challenge in SMSC Tribal Court & Watso I
After nearly eleven months of proceedings in the SMSC Tribal Court, on
December 8, 2015, Watso filed a motion to dismiss under Rule 12(b)(1) of the
Community’s Rules of Civil Procedure on the ground that the SMSC Tribal Court
lacked jurisdiction over her and her children. Watso’s Mot. to Dismiss, ECF No.
18; Joint App. at 619. The SMSC Tribal Court denied the motion to dismiss on
March 3, 2016. ECF No. 17; Joint App. at 603. The SMSC Tribal Court
determined it had jurisdiction over the proceeding involving C.H. and C.P.
pursuant to Chapter IX (recodified at Chapter VIII) of the Code. Id. at 9. The
SMSC Tribal Court further held that the Community retains the inherent authority
to exercise jurisdiction over child custody proceedings involving Indian children
residing or domiciled on its reservation, jurisdiction confirmed by Congress in the
Indian Child Welfare Act (“ICWA”), 25 U.S.C. §§ 1901-1963, and the State of
Minnesota. Id. at 9-14.
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Thereafter, on April 14, 2016, Watso filed a petition for habeas corpus under
the Indian Civil Rights Act (“ICRA”), 25 U.S.C. §§ 1301-1304, on behalf of
herself and C.P. (the child that is a member of the Red Lake Band). See Pet. ECF
No. 1, Watso v. Jacobson, et al., No. 16-cv-00983 (PJS/HB) (D. Minn.) (“Watso
I”). In the petition Watso asserted preemption, equal protection, and due process
claims related to the SMSC Tribal Court’s exercise of jurisdiction over C.P. Id.
While Watso I was pending, in December 2016, the Red Lake Band moved
to dismiss the SMSC Tribal Court’s child custody proceeding involving C.P. The
Red Lake Band asked the SMSC Tribal Court defer to the Red Lake Band Tribal
Court (“Red Lake Court”) because the Red Lake Band had started its own child
custody proceeding involving C.P. Compl. Exs. 5-6; Apps’ App. at 123, 129.
On January 17, 2017, the SMSC Tribal Court, having concluded that the Red
Lake Court proceeding would provide appropriate protection for C.P., closed its
child welfare proceeding involving C.P. in deference to the Red Lake Band.
Compl. Ex. 5. As a result, the parties to Watso I stipulated to dismiss the litigation
as moot. Stip. for Dismissal, ECF No. 49, Watso I, No. 16-983. The Honorable
Patrick J. Schiltz dismissed the case with prejudice on the merits a day later. Order
of Dismissal, ECF No. 51, Watso I, No. 16-983; Joint App. at 512. Watso did not
appeal from the dismissal with prejudice of her claims regarding C.P.
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Closing of the Red Lake Band’s Proceeding Involving C.P.
In October 2017, the Red Lake Family & Children Services Department,
Watso, and Dietrich stipulated to the transfer of permanent legal and physical
custody of C.P. to Dietrich. Red Lake Court Order, ECF No. 112; Apps’ App. at
509-511. Based on that stipulation, the Red Lake Court found that awarding
custody of C.P. to Dietrich was in his best interests, ordered that Dietrich be
awarded custody, and closed the child custody proceeding. Id.
B. The District Court Litigation
Thirteen days after Judge Schiltz dismissed Watso I with prejudice, Plaintiffs
filed this action challenging the proceedings in the tribal courts as well as the
conduct of the Commissioner of the Minnesota Department of Human Services
(“DHS”) and Scott County on multiple grounds. Originally, Appellants alleged
four claims in their complaint, including three against the Red Lake Parties and the
Community Defendants (Counts I, II, and IV). Compl. ¶¶ 148-188.
All Defendants3 moved to dismiss the claims against them. Mot. to Dismiss,
ECF Nos. 12, 29, 36, 46, 53. Before the motions were fully briefed, Appellants
voluntarily dismissed Count II, which was a claim styled as an ICRA petition for
3 The Defendants originally included Emily Piper in her official capacity as the Commissioner of DHS, Scott County, the Community, the Tribal Court, Judge John E. Jacobson in his official capacity, the Red Lake Band, the Red Lake Court, Judge Mary Ringhand in her official capacity, Isaac Hall (C.H.’s father), and Donald Perkins (C.P.’s father).
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habeas corpus similar to the petition in Watso I, and Count IV, which was a 42
U.S.C. § 1983 civil rights claim against the Community Defendants and the Red
Lake Parties. Order, ECF No. 73; Joint App. at 661. Appellants also voluntarily
dismissed all claims against the Community and the Red Lake Band (i.e., the
Indian tribes). Id.
The only remaining claim against the Red Lake Parties and the Community
Defendants was Count I, a “25 U.S.C. § 1914 ICWA petition to invalidate action
upon showing of ICWA violation.” Compl. at 37, ¶¶ 149-157. Appellants also
continued to pursue Count III, a 42 U.S.C § 1983 claim against Scott County and
Commissioner Piper. ECF No. 73; Joint App. at 661. Appellants dismissed all
claims against Hall and Perkins. ECF No. 99; Joint App. at 724.
Report and Recommendation of Dismissal
On December 5, 2017, Magistrate Judge Katherine Menendez recommended
that Appellants remaining claim against the Red Lake Parties, Count I, be
dismissed. ECF No. 117; Appellants’ Addendum (“Apps’ Add.”) at 12.4 The
Magistrate Judge reasoned that the plain language of 25 U.S.C. § 1914 “does not
create any cause of action against tribes or any basis to invalidate . . . the child-
4 Appellants filed a motion for partial summary judgment while the defendants’ motions were pending. ECF No. 103. The Magistrate Judge recommended that motion be denied as moot because the action should be dismissed. R&R, ECF No. 117 at 24; Apps’ Add. at 35. The District Court adopted that recommendation. Order, ECF No. 124 at 11; Apps’ Add. at 11.
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welfare proceedings of a tribal court, which plaintiffs seek to do here.” Id. at 16.
“Section 1914 does not suggest that the parent of an Indian child may petition a
federal court to invalidate a tribal proceeding for foster care placement or
termination of parental rights. And such an interpretation would be inconsistent
with ICWA’s purpose, which was designed to ensure that state proceedings
involving Indian children adhered to certain standards.” Id. at 17 (emphasis in
original).5
The Magistrate Judge also recognized that no claim made by Appellants
against the tribal courts as institutions could survive because the tribal courts “are
entitled to the same sovereign immunity that bars any claims against SMSC and
the Red Lake Band.” Id. at 18. The tribal courts, like the tribes, are subject to suit
only if Congress authorizes it or they waive their immunity. Id. Moreover, because
Appellants failed to respond to this argument when it was raised in the Community
Defendants and Red Lake Parties’ motion papers, Appellants “therefore abandoned
any claim that their suit could proceed against the tribal courts.” Id. at 19.
On the other hand, Appellants, according to the Magistrate Judge, might be
able to seek prospective injunctive relief against Judges Jacobson and Ringhand,
prohibiting them from “conducting any further tribal proceedings concerning the
5 Appellants have yet to respond to this argument, which was originally raised by the Community Defendants in their memorandum in support of their motion to dismiss. Id.
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welfare of C.H. and C.P. and requiring them to dismiss existing proceedings.” See
id. at 20-21. This “exception” to sovereign immunity applies if a tribal official is
acting outside the scope of her or his authority under federal law. Id. at 20.
However, Appellants “argument that the tribal judges acted outside the scope of
their authority is premised entirely on [a] legally incorrect theory.” Id. at 21.
Appellants’ legal theory, based on a combination of Public Law 83-280 (“PL
280”), 28 U.S.C. § 1360, and ICWA, was that the tribal courts either lacked
jurisdiction over the child welfare proceedings or had to wait for a state court to
authorize tribal court jurisdiction over the proceedings. Id. at 10. As the Magistrate
Judge explained, PL 280 “delegated jurisdiction to a handful of enumerated states
over many criminal and civil matters that arose on the ‘Indian country’ within
those states.” Id. at 6. The Community Reservation is covered by PL 280, but the
Red Lake Band Reservation is not. Id. at 7. “Importantly, although PL 280 gave
jurisdiction over some matters to states, it left intact the inherent tribal jurisdiction
over many of these matters that preceded the statute.” Id. (citing Walker v.
Rushing, 898 F.2d 672, 675 (8th Cir. 1990)).
ICWA, the other statute Appellants relied on, “was adopted in 1978 in
response to the extremely high numbers of Indian children removed from their
families and communities through state court child welfare proceedings.” Id. at 8.
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“Although ICWA is a lengthy and complex statute, only a few provisions are
relevant here”—25 U.S.C. Sections 1911(a) and (b) and Section 1918. Id.
Section 1911(a) specifies when a tribe has exclusive jurisdiction over Indian
child welfare proceedings. Id. at 8-9. There is “an exception to such exclusivity
when a state has jurisdiction over a child welfare proceeding under existing federal
law,” which has interpreted to include PL 280. Id. at 13. This section states:
An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
Section 1918 allows an Indian tribe subject to PL 280 to reassume exclusive
jurisdiction over child custody proceedings through a petitioning process. Id. at 9.
Section 1911(b) makes “clear that when a pre-existing state child welfare
proceeding involving Indian children is underway, tribes can receive jurisdiction
via transfer from state courts . . . .” Id. Section 1911(b) states:
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.
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The Magistrate Judge rejected Appellants’ jurisdictional arguments:
“Unfortunately for the plaintiffs, there is no support for the idea that the State held
exclusive jurisdiction in this matter. Nor is there support for their alternative
suggestion that the state and SMSC share jurisdiction, but the law required the
State to exercise its jurisdiction first.” Id. at 11.
Appellants relied heavily on a decision from the United States Court of
Appeals for the Ninth Circuit, Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005), to
support their interpretation of ICWA. Id. at 12. Appellants argued—with no textual
support—that the court in Doe v. Mann held that the carve out from exclusive
tribal jurisdiction based on “existing federal law” in Section 1911(a) granted states
exclusive jurisdiction over Indian child welfare proceedings on reservations
covered by PL 280, unless the tribe petitioned the Secretary to “reassume”
jurisdiction under Section 1918. The Magistrate disagreed.
Doe v. Mann involved an Indian mother’s challenge to a state exercising
jurisdiction over an Indian child welfare proceeding (not a non-Indian’s challenge
to a tribe exercising jurisdiction). Id. The mother argued that the tribe had
exclusive jurisdiction despite the carve out in Section 1911(a). Id. The court held
that the reference to “existing federal law” in Section 1911(a) includes PL 280; and
that because of the carve out, states and tribes covered by PL 280 share
“concurrent jurisdiction over Indian child welfare proceedings.” Id. at 13. “But,
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Doe v. Mann certainly did not hold that the PL 280 carve-out from ICWA’s
exclusive jurisdiction provisions requires states to exercise exclusive jurisdiction.”
Id. at 12. The language of the statutes does not support this interpretation. Id. at 13.
Moreover, the Ninth Circuit had already resolved the issue of whether tribes
had concurrent jurisdiction over Indian child welfare proceedings on PL 280
reservations 14 years earlier in Native Village of Venetie I.R.A. Council v. Alaska,
944 F.2d 548 (9th Cir. 1991). Id. at 11-12. In Native Village, the State of Alaska
argued that PL 280, as incorporated by Section 1911(a), stripped Alaska Natives of
their jurisdiction over Indian child welfare proceedings and that PL 280 “vested the
enumerated states with exclusive, not merely concurrent, jurisdiction over civil and
criminal matters involving Indians.” Id. at 11-12 (quoting Native Village, 944 F.2d
at 559. The Ninth Circuit rejected that argument, like the Magistrate Judge did,
because PL 280 is “designed not to supplant tribal institutions, but to supplement
them . . . [PL 280] is not a divestiture statute.” Id. at 12 (quoting Native Village,
944 F.2d at 560). The court in Native Village found that Section 1918 served a
purpose because it allows PL 280 tribes to reassume exclusive jurisdiction as
opposed to sharing concurrent jurisdiction with the state. Id. at 12 n.10.
Finally, the Magistrate Judge rejected Appellants’ argument that Section
1911(b) requires state court approval before a tribe with concurrent jurisdiction
under Section 1911(a) can exercise it, citing two reasons. Id. at 14-15. “First, no
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‘state court proceeding’ regarding the welfare of the children at issue here existed
at any point, making § 1911(b) inapplicable on its face.” Id. at 15. “Second, the
[Appellants] failed to allege any facts indicating that the children were neither
residing nor domiciled on the SMSC reservation at the time the SMSC Court took
jurisdiction over the relevant child-welfare proceedings.” Id. Without such
allegations, Section 1911(b) is not relevant to the case. And, regardless, “the record
before the Court demonstrates that C.H. and C.P. were domiciled at an address on
the Shakopee Reservation with Ms. Watso and C.H.’s father.” Id.; see also Compl.
Ex. 3; Apps’ App. at 117 (listing the on reservation address of the parents).
Appellants’ theory for how the DHS Manual contradicts federal law is based
on an argument that (1) the state court has exclusive jurisdiction over Indian child
welfare proceedings for Indian children that are members of PL 280 tribes or,
alternatively, (2) a state court action must precede a PL 280 tribe exercising
jurisdiction and be authorized by Section 1911(b). Id. at 22. “Unfortunately for the
plaintiffs,” according to the Magistrate Judge, “this argument fails for the same
reason as the rest of the Complaint.” Id. (determining that neither ICWA nor PL
280 conferred exclusive jurisdiction on the State or required the County to initiate
a state court proceeding before referring the report of possible child abuse to
SMSC, “which already had child welfare proceedings underway”). Id.
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District Court’s Adoption of the Report and Recommendation
Appellants objected to the Report and Recommendation on December 18,
2017. Order, ECF No. 119; Joint App. at 726. The District Court overruled the
objections, adopted the Report and Recommendation, granted the motions to
dismiss, denied Appellants’ motion for partial summary judgment, and dismissed
the Complaint. ECF No. 124, Apps’ Add. at 1.
Appellants objected that the Magistrate Judge incorrectly applied Rules 8
and 12 of the Federal Rules of Civil Procedure and improperly considered Judge
Jacobson’s conclusion that the children were in need of assistance, which was
made during the January 28, 2015 hearing in SMSC Tribal Court. Id. at 5. The
District Court held that the Magistrate Judge correctly applied Rules 8 and 12 of
the Federal Rules of Civil Procedure by accepting the factual averments in the
complaint as true and deciding that Appellants’ legal theory is incorrect. Id. at 5-6.
The Magistrate Judge’s consideration of Judge Jacobson’s conclusion was proper
because a court order that does not contradict the allegations in the complaint may
be considered at the motion to dismiss stage. Id. at 6 (citing Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)). And the Magistrate Judge’s
conclusion did not rest on Judge Jacobson’s decision, which is referred to in a
footnote of the Report and Recommendation. Id. “Rather, it was cited to note that
another independent basis to dismiss the Complaint may exist.” Id.
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Appellants renewed their arguments related to Doe v. Mann and 25 U.S.C.
§§ 1911(a), 1911(b), and 1918. But the District Court held that Native Village
“undermines [Appellants’] argument that SMSC lacked jurisdiction over the
custody determinations.” Id. at 8. “Native Village persuasively rejected
[Appellants’ Section 1918] argument.” Id. And their arguments find “no support in
Doe. Rather, Doe continued to recognize Native Village’s holding that ‘Public Law
280 states have only concurrent jurisdiction with the tribes over custody
proceedings involving Indian children.’” Id. (quoting Doe v. Mann, 415 F.3d at
1063 n.32).
The District Court also found Appellants’ argument related to Section
1911(b) flawed. Id. at 9. “Section 1911(b) only applies in a ‘State court
proceeding,’” and no state court proceeding existed here. Id. “Moreover, there is
no requirement that the state initiate proceedings before Scott County could
transfer the case to SMSC.” Id. Such an argument is contradicted by the Supreme
Court’s statement in Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36
(1989), that Section 1911(b) “creates concurrent but presumptively tribal
jurisdiction in the case of children not domiciled on the reservation.” Id.
In their objections, Appellants focused for the first time on a federal
regulation implementing ICWA, 25 C.F.R. § 23.106(b), which states: “where
applicable State or other Federal law provides a higher standard of protection to the
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rights of the parent or Indian custodian than the protection accorded under the Act,
ICWA requires the State or Federal court to apply the higher State or Federal
standard.” Id. at 9. Appellants argued that Section 1911(b)’s requirement of a
preceding state court action must apply. Id. The District Court found that Section
1911(b) does not require a preceding state court action prior to a tribal court’s
exercise of jurisdiction over an Indian child. Id. This appeal followed.
SUMMARY OF THE ARGUMENT
Appellants are precluded by tribal sovereign immunity from asserting any
claims against the Red Lake Parties. Furthermore, 25 U.S.C. § 1914 does not
create a cause of action against tribal courts or a cause of action to invalidate tribal
court proceedings. Additionally, any claim that Appellants assert against the Red
Lake Parties relating to C.P. are moot and subject to claim preclusion.
Appellants’ claim that ICWA requires a state court action to precede a tribal
court child custody proceeding is based on a flawed interpretation of ICWA.
Rather, ICWA’s purpose is to set certain standards for state courts to follow in
proceedings involving Indian children. Furthermore, the Red Lake Court properly
exercised jurisdiction over C.P. based on the Red Lake Band’s inherent sovereign
authority and tribal law. By virtue of its status as an Indian tribe, the Red Lake
Band has authority to initiate a child custody proceeding involving a member of
the Red Lake Band wherever domiciled.
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Congress did not divest tribal courts from exercising jurisdiction over child
custody proceedings involving enrolled tribal members in either ICWA or PL 280.
No prior court decision supports Appellants’ argument that ICWA requires a state
court proceeding and parental consent before a tribal court exercises jurisdiction
over a child custody proceeding involving an enrolled tribal member. To the
contrary, the relevant federal statutes and Ninth Circuit precedent support tribal
jurisdiction over the Indian child welfare proceedings that Appellants challenge.
The Court should affirm the District Court’s dismissal of all claims brought
by Appellants against the Red Lake Parties.
STANDARD OF REVIEW
The “review of an order granting a motion to dismiss is de novo.” Coons v.
Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005). “Subject matter jurisdiction . . . is a
threshold requirement which must be assured in every federal case.” Turner v.
Armontrout, 922 F.2d 492, 493 (8th Cir. 1991). “The burden of proving subject
matter jurisdiction falls on the plaintiff.” V S Ltd. P’Ship v. Dep’t of Hous. and
Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000). “A motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1) may challenge the Complaint either
on its face or on the factual truthfulness of its averments.” Hester v. Redwood
Cnty., 885 F.Supp.2d 934, 943 (D. Minn. 2012).
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Under Rule 12(b)(6), “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts well-
pleaded factual allegations as true, but should disregard conclusory allegations.
Iqbal, 556 U.S. at 678. If the plaintiff fails to “raise a right to relief above the
speculative level,” then Rule 12(b)(6) dismissal is warranted. Twombly, 550 U.S. at
555.
“In considering such a motion to dismiss, the pleadings are construed in the
light most favorable to the nonmoving party, and the facts alleged in the complaint
must be taken as true.” Hester, 885 F.Supp.2d at 942 (citing Hamm v. Groose, 15
F.3d 110, 112 (8th Cir. 1994). “Any ambiguities concerning the sufficiency of the
claims must be resolved in favor of the nonmoving party.” Id. As a general rule,
the Court may not consider materials “outside the pleadings” on a motion to
dismiss. Fed. R. Civ. P. 12(d). However, the Court “may consider some materials
that are part of the public record or do not contradict the complaint, as well as
materials that are necessarily embraced by the pleadings” without converting the
motion. Little Gem Life Sciences, LLC v. Orphan Med., Inc., 537 F.3d 913, 916
(8th Cir. 2008) (internal quotations omitted).
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ARGUMENT
I. THE RED LAKE PARTIES ARE IMMUNE FROM SUIT The Court should find that the Red Lake Parties are immune from
Appellants’ lawsuit. To avoid tribal sovereign immunity, Appellants argue that
their lawsuit only requests prospective, injunctive relief “over the tribal courts and
their officials” and falls within the Ex parte Young exception. Ex parte Young, 209
U.S. 123 (1908); Apps’ Br. at 53, 55. The Magistrate Judge properly found that
Appellants’ claims against the SMSC Tribal Court and the Red Lake Court could
not survive because the tribal courts “are entitled to the same sovereign immunity
that bars any claims against SMSC and the Red Lake Band.” ECF No. 117; Apps’
Add at 18. Appellants allege no waiver of sovereign immunity by the Red Lake
Parties. Furthermore, Appellants cannot sue the Red Lake Court in a federal court
action to determine whether Judge Ringhand is violating federal law that may be
prospectively enjoined. Accordingly, Appellants’ Ex parte Young argument
pertaining to Judge Ringhand fails because she is not violating federal law and thus
remains immune from suit.
A. The Red Lake Court Enjoys Sovereign Immunity from Appellants’ Suit
Sovereign immunity is a threshold jurisdictional question that must be
addressed before the merits. Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163,
171 (2009); Amerind Risk Mgmt. Corp. v. Malaterre, 633 F.3d 680, 684 (8th Cir.
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2011). “Indian tribes have long been recognized as possessing the common-law
immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58 (1978). “As a matter of federal law, an Indian
tribe is subject to suit only where Congress has authorized the suit or the tribe has
waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754
(1998). “[A] tribe’s sovereign immunity may extend to tribal agencies, including
[a] Tribal Court.” Fort Yates Pub. Sch. Dist. # 4 v. Murphy, 786 F.3d 662, 670-71
(8th Cir. 2015) (quoting Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040,
1043 (8th Cir. 2000)). Appellants “bear the burden of proving that either Congress
or [the Red Lake Band] has expressly and unequivocally waived tribal sovereign
immunity.” Amerind, 633 F.3d at 685-86.
Here, the Red Lake Court is a tribal agency to which the tribal sovereign
immunity of the Red Lake Band extends. See Fort Yates, 786 F.3d at 670-71.
Furthermore, Appellants do not allege that the Red Lake Court has clearly and
unequivocally waived its sovereign immunity for injunctive and declaratory relief.
Additionally, none of the federal laws relied on by Appellants abrogate sovereign
immunity. Therefore, the Red Lake Court enjoys tribal sovereign immunity from
Appellants’ claims.
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B. The Ex Parte Young Doctrine Does Not Apply Because Red Lake Court Judge Mary Ringhand Has Not Violated Federal Law Tribal sovereign immunity can protect tribal employees who act in their
official capacities and within the scope of their authority in a suit for damages
because an award of money damages would affect the tribe itself. See Baker Elec.
Coop., Inc. v. Chaske, 28 F.3d 1466, 1471 (8th Cir. 1999) (citing N. States Power
Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 460 (8th
Cir. 1993)).
In Prairie Island, 991 F.2d at 460-62, the Eighth Circuit established a
narrow exception to tribal sovereign immunity for claims seeking prospective
injunctive relief against tribal officials, which essentially mirrors the doctrine of Ex
parte Young, 209 U.S. 123, 159-60 (1908). Under this exception, a lawsuit may
proceed against a tribal official who acts outside the scope of her authority in
violation of federal law. Id. at 460. This exception to tribal sovereign immunity
“applies only to prospective relief, does not permit judgments against [tribal]
officers declaring that they violated federal law in the past, and has no application
in suits against [Indian tribes] and their agencies, which are barred regardless of
the relief sought.” Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 146 (1993).
Here, Appellants’ allegations pertain to conduct well within Judge
Ringhand’s official capacity and authority. Because 25 U.S.C. § 1914 does not
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apply to tribal court proceedings, Judge Ringhand’s conduct did not violate federal
law. Additionally, because neither ICWA nor Public Law 280 prohibit the Red
Lake Band from exercising jurisdiction over the child welfare proceedings at issue,
Judge Ringhand cannot be claimed to have “placed [herself] outside of the tribe’s
sovereign immunity.” Prairie Island, 991 F.2d at 462. Because Judge Ringhand’s
exercise of jurisdiction over C.P. is fully in accordance with federal law, Judge
Ringhand is entitled to tribal sovereign immunity, and therefore, is not subject to
suit for any prospective injunctive relief sought by Appellants.
II. APPELLANTS CANNOT BRING A PETITION UNDER 25 U.S.C. § 1914 TO INVALIDATE TRIBAL COURT PROCEEDINGS
Appellants petition under 25 U.S.C. § 1914 “to invalidate the SMSC tribal
court proceeding and the Red Lake Nation tribal court proceeding because they
violate the [ICWA] requirements that prior to tribal court jurisdiction there had to
be a state court proceeding and parental consent.” Compl. ¶ 149.6
Section 1914 of the Indian Child Welfare Act (“ICWA”) does not provide a
basis for Appellants to invalidate the child custody proceedings of a tribal court.
Section 1914 provides:
6 Appellants also requested that the District Court “enjoin” Scott County to re-initiate its administrative proceedings regarding C.H. and C.P.” Compl. ¶ 157. But 25 U.S.C. § 1914 does not provide for the creation, initiation, or re-initiation of state court proceedings. It only allows for the invalidation of such state proceedings.
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Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.
The plain language of Section 1914 makes clear that it does not create a
cause of action for a parent of an Indian child, such as Watso, to invalidate a child
custody proceeding of a tribal court. Section 1914 only authorizes petitions to
invalid proceedings under State law. Furthermore, the Ninth Circuit has concluded
that “[t]he language of [Section 1914] could not be clearer: Congress is authorizing
any court of competent jurisdiction to invalidate a state court judgment involving
the Indian child.” Doe v. Mann, 415 F.3d 1038, 1047 (9th Cir. 2005).
Additionally, ICWA does not apply to tribal court proceedings. 25 C.F.R. §
23.103(b)(1) (providing that ICWA does not apply to: “[a] Tribal court
proceeding.”). ICWA only provides a mechanism for transferring jurisdiction from
state court to tribal court. 25 U.S.C. § 1911. The Supreme Court has recognized
that Congress intended for ICWA to “establish[] federal standards that govern
state-court child custody proceedings involving Indian children.” Adoptive Couple
v. Baby Girl, 233 S.Ct. 2552, 2557 (2013). Because Section 1914 of ICWA only
allows for actions to invalidate state court proceedings and not tribal court
proceedings, Appellants cannot rely on Section 1914 to bring a cause of action to
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invalidate any child custody proceeding in tribal court. Therefore, Appellants
cannot proceed to bring a claim under Section 1914 to invalidate the child custody
proceeding involving C.P. in the Red Lake Court.
III. THE RED LAKE COURT PROPERLY EXERCISED JURISDICTION OVER THE CHILD CUSTODY PROCEEDING INVOLVING C.P.
The Red Lake Band has inherent sovereign authority to initiate a child
custody proceeding involving a member of the Red Lake Band wherever domiciled
by virtue of its status as an Indian tribe. Neither Public Law 280 nor the Indian
Child Welfare Act restrict the sovereign authority of the Red Lake Band to initiate
child custody proceedings involving members of the Red Lake Band.
A. The Red Lake Band Has Jurisdiction Over the Child Custody Proceeding Involving C.P. Based on Its Inherent Sovereign Authority “Indian tribes consistently have been recognized as distinct, independent
political communities qualified to exercise powers of self-government, not be
virtue of any delegation of powers, but rather by reason of their original tribal
sovereignty.” Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 556
(9th Cir. 1991) (quotations omitted). Tribal sovereign authority includes
jurisdiction over Indian child custody proceedings involving Indian children within
their territory. See, e.g., Fisher v. Dist. Ct. of Sixteenth Jud. Dist. of Mont., in and
for Rosebud Cnty., 424 U.S. 382, 389 (1989) (affirming tribal jurisdiction over
adoption proceeding involving an Indian child who was a tribal member and
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resided on Indian lands); United States v. Mazurie, 419 U.S. 544, 556-57 (1975)
(recognizing Indian tribes as “separate people” that possess “the power of
regulating their internal and social relations”) (quotations omitted); United States v.
Quiver, 241 U.S. 602, 603-04 (1916).
In Holyfield, the Supreme Court provided that tribal jurisdiction over Indian
child custody proceedings “is not a novelty” of ICWA and that “ICWA’s
jurisdictional provisions have a strong basis in pre-ICWA case law in the federal
and state courts.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 42
(1989). The Supreme Court also stated that Congress in enacting ICWA
“confirmed” tribal court jurisdiction over child custody proceedings. Id. at 41; see
25 U.S.C. § 1911 (confirming tribal jurisdiction over child custody proceedings
involving Indian children residing or domiciled within a tribe’s reservation); 25
U.S.C. § 1903(1)(i) (defining “child custody proceeding” as an action removing an
Indian child from its parent such that the child will not be returned upon demand);
25 U.S.C. § 1903(4) (defining “Indian child” as “any unmarried person who is
under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible
for membership in an Indian tribe and is the biological child of a member of an
Indian tribe”).
Here, the child custody case involving C.P. falls within tribal court
jurisdiction. C.P. is an Indian child that resided or was domiciled on the
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Community’s reservation when the SMSC Tribal Court initiated its proceedings.
ECF No. 17 at 5; Joint App. at 607. Furthermore, the Red Lake Court properly
exercised jurisdiction over C.P. when the SMSC Tribal Court deferred to the Red
Lake Band’s jurisdiction over the child custody proceeding involving C.P. because
C.P. is a member of the Red Lake Band and Red Lake tribal law provides that the
Red Lake Tribal Court may exercise jurisdiction over Red Lake children wherever
they are domiciled. For these reasons, this Court should determine that the Red
Lake Band properly exercised jurisdiction over the child custody proceeding
involving C.P. based on its inherent sovereign authority.
B. The Red Lake Band’s Jurisdiction over Child Custody Cases Involving Members of the Red Lake Band Has Not Been Abrogated or Divested by Congress
Neither Public Law 280 nor the Indian Child Welfare Act abrogate the Red
Lake Band’s inherent sovereign authority to exercise jurisdiction over child
custody proceedings involving members of the Red Lake Band.
1. Public Law 280 as Incorporated in ICWA Does Not Abrogate the Red Lake Band’s Inherent Sovereign Jurisdiction over Child Custody Proceedings Involving Members of the Red Lake Band
Tribal “[s]overeign authority is presumed until Congress affirmatively acts
to take such authority away.” Native Village of Venetie I.R.A. Council v. Alaska,
944 F.2d 548, 556 (9th Cir. 1991). Public Law 280 delegates jurisdiction of certain
criminal and civil matters that arise in “Indian country” to certain states
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enumerated in the statute. Public Law 280, 28 U.S.C. § 1360(a) expressly provides
that:
Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State[.] However, Public Law 280 applies to “[a]ll Indian country within the State
[of Minnesota], except the Red Lake Reservation.” Id. Although Public Law 280
gave jurisdiction over some matters to states, it left intact the inherent jurisdiction
over many of these matters that preceded the statute. Cohen’s Handbook of
Federal Indian Law § 6.04[3][c], at 555 (Nell Jessup Newton ed., 2012) (“The
nearly unanimous view among tribal courts, state courts, lower federal courts, state
attorneys general, the Solicitor’s Office for the Department of the Interior, and
legal scholars is that Public Law 280 left the inherent civil and criminal jurisdiction
of Indians nations untouched.”).
Here, because the Red Lake Band has inherent sovereign authority to
exercise jurisdiction over a child custody proceeding involving a member of the
Red Lake Band; and because the Red Lake Band is expressly exempt from the
application of Public Law 280, which does nothing to divest any tribe from
exercising jurisdiction over a child custody proceeding, the Red Lake Band may
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properly exercise jurisdiction over child custody proceedings involving members
of the Red Lake Band, such as the one involving C.P. Therefore, the Red Lake
Band properly exercised jurisdiction over the child custody proceeding involving
C.P., and Appellants cannot bring a cause of action to invalidate the Red Lake
Court child custody proceeding involving C.P.
2. ICWA Does Not Require a State Court Action to Precede a Tribal Court Proceeding to Grant Watso a Right to Challenge Tribal Court Jurisdiction Over a Child Custody Proceeding Under the Circumstances of this Case
ICWA provides mechanism, in 25 U.S.C. § 1911(b), that allows for the
transfer of Indian child custody proceedings from a state court to a tribal court. 25
U.S.C. § 1911(b) provides that:
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause of the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe. Such a transfer is “subject to declination” by the tribal court. 25 U.S.C. § 1911(b).
Appellants argue, despite the plain language quoted above, that 25 U.S.C. §
1911(b) requires the initiation of a state court proceeding before any tribal court
proceeding and creates a right for Watso to object to a transfer to a tribal court
(even if there never was a state court proceeding), which necessitates invalidation
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of the tribal court proceedings and an injunction requiring the State to initiate child
custody proceedings.
Here, it is undisputed that no state court ever initiated such a proceeding at
any point. ECF No. 117; Apps’ Add. at 15. Because there was not a state court
proceeding, 25 U.S.C. § 1911(b) never became applicable. See 25 C.F.R. §
23.1117 (following 25 U.S.C. § 1911(b) and prescribing that 25 U.S.C. § 1911(b)
only applies to “the State court”). Additionally, no provision in ICWA requires the
State to initiate state court proceedings under the circumstances of this case.
Accordingly, the Red Lake Court properly exercised jurisdiction over child
custody proceedings involving C.P. based on its inherent sovereign authority.
Therefore, Appellants’ claim that ICWA requires a state court action to precede a
tribal court custody proceeding is based on a flawed interpretation of ICWA. For
these reasons, this Court should dismiss Appellants’ argument for a failure to state
a claim.
IV. APPELLANTS’ CLAIMS AGAINST THE RED LAKE PARTIES RELATED TO C.P. MUST BE DISMISSED AS MOOT OR BARRED BY THE DOCTRINE OF CLAIM PRECLUSION A. Claims Against the Red Lake Parties Related to C.P. are Moot Under Article III of the U.S. Constitution, federal courts may adjudicate
only actual, ongoing cases or controversies. Deakins v. Monaghan, 484 U.S. 193,
199 (1988). “This case-or-controversy requirement subsists through all stages of
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federal judicial proceedings, trial and appellate.” Lewis v. Cont’l Bank Corp., 494
U.S. 472, 477 (1990). “When, during the course of litigation, the issues presented
in a case ‘lose their life because of the passage of time or a change in
circumstances . . . and a federal court can no longer grant effective relief,’ the case
is considered moot.” Haden v. Pelosky, 212 F.3d 466, 469 (8th Cir. 2000). When
an action no longer satisfies the case or controversy requirement, the action is moot
and the federal court must dismiss the action. Potter v. Norwest Mortg., Inc., 329
F.3d 608, 611 (8th Cir. 2003).
In November 2017, the Red Lake Court found that awarding custody of C.P.
to Kaleen Dietrich to be in C.P.’s best interest. Red Lake Order, ECF No. 112;
Apps’ App. at 509-511. Accordingly, the Red Lake Court awarded custody of C.P.,
without restriction, to Appellant Kaleen Dietrich, and closed its child custody
proceedings involving C.P. Id. Because the Red Lake Court is no longer exercising
jurisdiction over C.P., there is no actual, ongoing case or controversy remaining
with regard to C.P. Furthermore, Appellants participated in the case before the Red
Lake Court; and they requested the result that they ultimately received: the transfer
of permanent legal and physical custody of C.P. to Appellant Kaleen Dietrich. Not
only are Appellants’ claims pertaining to the Red Lake Parties moot, but they are
also disingenuous. For these reasons, all claims against the Red Lake Parties
relating to C.P. must be dismissed as moot.
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B. Claims Against the Red Lake Parties Related to C.P. are Barred by the Doctrine of Claim Preclusion
To determine whether claim preclusion bars a claim, the Court considers
whether “(1) the earlier claim involved the same set of factual circumstances; (2)
the earlier claim involved the same parties or their privies; (3) there was a final
judgment on the merits; [and] (4) the estopped party had a full and fair opportunity
to litigate the matter.” Minch Family LLP v. Buffalo-Red River Watershed Dist.,
628 F.3d 960, 966 (8th Cir. 2010). Here, any claims that Appellants intend to assert
against the Red Lake Band related to C.P. would fall squarely within the claim
preclusion framework.
First, Appellants’ claims involve the same set of factual circumstances as
those in the original petition for relief in Watso I. Second, such claims involve the
same parties as Watso I, or persons and entities with interests that are directly
aligned with, and “fully represented” by, the parties in Watso I, such as the Red
Lake Parties. See Cnty. of Boyd v. U.S. Ecology, Inc., 48 F.3d 359, 361-62 (8th Cir.
1995). Third, there was a final judgment on the merits because Judge Schiltz
dismissed [Watso I], No. 16-cv-00983 (D. Minn. Feb. 10, 2017); Hintz v.
JPMorgan Chase Bank, N.A., 686 F.3d 505, 510 (8th Cir. 2012). Finally, Watso’s
claims in Watso I were jurisdictional and constitutional in nature, and nothing
prevented her from bringing the same jurisdictional challenges with respect to the
Red Lake Parties in that earlier case. Therefore, to the extent that Appellants assert
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34
claims against the Red Lake Parties related to C.P., such claims are barred by the
doctrine of claim preclusion.
CONCLUSION
For the foregoing reasons, this Court should affirm the District Court’s
dismissal of all claims of Appellants Watso and Dietrich against the Red Lake
Parties.
Respectfully submitted,
Dated: June 28, 2018 /s/ Joseph M. Plumer Joseph M. Plumer (#164859)
Riley F. Plumer (#0399379) PLUMER LAW OFFICE
9352 N. Grace Lake Rd. SE Bemidji, MN 56601 Telephone: (218) 556-3824 Email: [email protected]
Attorneys for Appellees Tribal Court of the Red Lake Band of Chippewa Indians and Judge Mary Ringhand, in her official capacity
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CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(A), and it also complies with Fed. R. App. P. 32(a)(7)(B) because the
brief contains 8,032 words, excluding the parts of the brief exempted by Fed. R.
App. P. 32(f).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Office
Word 2016, Times New Roman, Font Size 14.
3. The undersigned also certifies that this brief has been scanned for viruses
and is virus-free.
Dated: June 28, 2018 /s/ Joseph M. Plumer
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CERTIFICATE OF SERVICE
I hereby certify that on June 28, 2018, I electronically filed the foregoing
brief with the Clerk of the Court for the United States Court of Appeals for the
Eighth Circuit by using the CM/ECF system. Participants in the case who are
registered CM/ECF users will be served by the CM/ECF system.
/s/ Joseph M. Plumer
Appellate Case: 18-1723 Page: 45 Date Filed: 07/05/2018 Entry ID: 4679400